We represented our client, DP, in a case where expert evidence obtained after a tribunal hearing revealed that she faced difficulties conducting her Housing Benefit claim appeal due to a lack of capacity - something the tribunal had failed to recognise.

Background

DP was granted a secure tenancy by the London Borough of Lambeth in 1984. In 2014, DP reported that her son had moved out of the property. Lambeth Council took her son's name off DP's Housing Benefit claim and applied a single person's discount to her Council Tax.

Three years later, the council opened an investigation into DP's entitlement. Lambeth Council representatives visited DP at her home and she was interviewed under caution in 2018. The council obtained documentary evidence which recorded the son's address as being at DP's property. They issued a non-dependant deduction from September 2014 on the basis that DP's son was still residing at the property. This resulted in a £16,342.32 overpayment of Housing Benefit. The reduction in DP's ongoing entitlement to housing benefit put the rent account into arrears and the council initiated Possession Proceedings in the County Court.

First-tier Tribunal dismissed DP's appeal

DP appealed to the First-tier Tribunal. The First-tier Tribunal directed DP to provide copies of her son’s council tax bills for his accommodation. They encouraged DP to attend with her son so he could give oral evidence. After two adjourned appeals in 2020, the First-tier Tribunal directed DP to provide electoral register forms showing her son's other residence. DP did not comply with these requests but wrote several letters to the First-tier Tribunal. She repeated the allegation that the council made the overpayment decision after she had obtained a Debt Relief Order (DRO).

The First-tier Tribunal dismissed DP's appeal in January 2021 due to the absence of satisfactory evidence. They accepted the council's case that DP's son had been residing at the property during the period of the alleged overpayment. The tribunal said it would have been “relatively straightforward” for her to prove her son’s address.

Concerns raised about her capacity

The council initiated proceedings for rent arrears. It proved difficult to take instructions from DP so we could prepare a witness statement. As a result, we were concerned about DP’s capacity to litigate. We instructed Consultant Psychiatrist, Dr Kumar to prepare a report addressing DP's capacity to conduct legal proceedings. We applied to set aside the FtT decision, but the application was dismissed. The judge found no procedural irregularity and considered the evidence out of time.

Appeal in the Upper Tribunal

DP made a late application for permission to appeal to the Upper Tribunal (UT). This was on the basis that the First-tier Tribunal had erred in the matter being 'relatively straightforward' for DP to show that her son did not reside at her property. The First-tier Tribunal had wrongly assumed DP could fully participate in proceedings. However, her condition meant she could not effectively represent herself or respond to directions. The adverse inference drawn from her non-compliance was unfair.

In June 2023, the Upper Tribunal dismissed DP’s appeal. The Judge accepted that DP lacked capacity in November 2021 but found no evidence she lacked capacity during her original hearing in January 2021. The Judge also noted that the First-tier Tribunal had acted fairly and was experienced in handling vulnerable litigants.

Court of Appeal

DP appealed to the Court of Appeal, arguing the Upper Tribunal had misinterpreted expert evidence. The Deputy Judge should have concluded that DP's mental disorder affected her ability to represent herself adequately. It was not straightforward for DP to show that her son resided elsewhere during the overpayment period. The First-tier Tribunal failed to recognise this disadvantage.

Outcome

The Court adjourned DP’s application for permission to appeal and held a rolled-up hearing. In a reserved judgment, the Court agreed, granted permission and allowed DP’s appeal. They set clear standards for how tribunals must approach fairness where a party has reduced ability to participate. This ruling establishes important protections for those who face serious disadvantage in legal proceedings due to lack of capacity.

The Court stressed that ''where a person is either vulnerable or compromised in their ability to participate fully in the proceedings, procedural unfairness must be avoided''. 

The judgment draws on key precedents including E&R v Secretary of State for the Home Department [2004] EWCA Civ 49, [2004] QB 1044.

Our client was represented by Joint Head of Housing, Claire Wiles and Trainee Solicitor, Clémence Coignard of GT Stewart Solicitors. Claire instructed Desmond Rutledge as counsel of Garden Court Chambers who was led by Jamie Burton KC of Doughty Street Chambers.

Judgment: DP v London Borough of Lambeth [2025] EWCA Civ 985

To learn more about how we support clients who have been assessed with lacking capacity read our article on the role of wishes and feelings.

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